In support of his motion, defendant Rogers has submitted a Motion in Limine ("D. Motion"); a Memorandum of Authorities in Support of Defendant's Motion in Limine ("D. Memo"); a Supplemental Reply to Government's Surresponse Served January 20, 1994; and a letter dated May 13, 1993 clarifying certain information contained in defendant's Memorandum of Law.

In opposition to defendant's motion, the government has submitted a Response to Defendant Rogers's Motion for a Kastigar Hearing ("G. Response"); and a Surresponse to the Defendant's May 28, 1993 Reply to the Government's Response to the Defendant's Motion for a Kastigar Hearing ("G. Surresponse").

As discussed below, this Court conducted a Kastigar hearing on February 8, 1994 to determine whether the government had legitimate independent sources for its proof against defendant Rogers. In preparation for that hearing, the government submitted an Affidavit and Response to Kastigar Motion of Defendant Ben Rogers prepared by Assistant United States Attorney Martin J. Littlefield, with exhibits ("Littlefield Affid."); an Affidavit of Assistant United States Attorney Anthony M. Bruce ("Bruce Affid."); an Affidavit of Assistant United States Attorney William J. Knapp ("Knapp Affid."); and an Affidavit of Special Agent Dean G. Naum of the Federal Bureau of Investigation ("Naum Affid.").

b. Further investigation revealed that Mrs. Goldberg was the daughter of Ben Rogers.

c. Inquiry of IRS Special Agents in the Louisville area revealed that Ben Rogers was a well known bookmaking figure in the Louisville area.

d. Subpoenaed bank records had revealed a $ 5,000 official bank check issued to a restaurant known to be controlled by Ben Rogers (although ownership was listed in his wife's name) with the remitter being Nicholas Mauro.

(Bruce Affid. P 4). Bruce avers that the investigation that led to the present Superseding Indictment commenced in late 1988, and originally pertained solely to the activities of Nicholas Mauro and his associates in the Western New York area. Bruce writes, "The investigative file was opened based upon source information indicating that Nicholas Mauro was about to be released from jail and that he had already begun to make preparations to reassert day-to-day control over his bookmaking enterprise. . . ." (Ibid. P 6). Bruce indicates that the investigation involved wiretaps of phones used by Mauro's alleged bookmaking operation, and the execution of search warrants.

However, Bruce states that he was not involved in the investigation, and that the investigation was supervised by Knapp. Bruce writes that he was assigned to the Rochester, New York office of the Justice Department's Organized Crime Strike Force, and was only "vaguely aware" of the Mauro investigation. (Ibid. P 7). He understands that Rogers was not originally a target of the investigation, but became a target only after he was overheard during wiretapped telephone conversations that allegedly involve him in Mauro's bookmaking activities. Rogers was identified through pen registers placed on Mauro's phones. Furthermore, Bruce indicates that since the investigation began, an individual by the name of Peter Spero has been an associate of Mauro, and has possessed extensive information about Mauro's bookmaking activities.
*fn2"
Moreover, the wiretaps and other aspects of the investigation revealed other Mauro associates, including one Dana Iser. Bruce concludes his Affidavit by stating:

Knapp states in his Affidavit that he was involved in the early part of the investigation leading to the present Superseding Indictment, including the preparation of the wiretap and search warrant applications. He states that at the beginning of the investigation, the only targets were Nicholas Mauro and his associates in the Western New York area. Rogers became a target only after he was overheard during wiretapped telephone conversations in late 1989 and 1990. Knapp avers that at no time during the investigation did he use any of Rogers' immunized testimony, nor did he recall the existence of such testimony beyond a general knowledge that Rogers had been associated with Mauro. Knapp writes, "At no time did I discuss with Special Agent Dean Naum, the agent in charge of the present investigation/indictment, the contents or even the existence of the aforesaid Grand Jury/trial transcripts." (Ibid. P 5). Finally, Knapp refers to the wiretap and search warrant applications (Exhs. F, G, and H), indicating that "there was absolutely no use of nor reference to the aforesaid transcript nor was any information derived from that testimony and used in this investigation." (Ibid. P 6).

Littlefield states in his Affidavit:

Mr. Bruce has advised me that the total evidence against Ben Rogers will consist of the following:

a. Use of the 1989-1990 wire tap;

b. Use of certain physical evidence seized in the execution of the February 1990 Search Warrants;

c. Agent testimony to the effect that Pen Registers were placed on phones in the Western District of New York showed calls to and from phones listed to Ben Rogers during 1989-1990;
*fn3"

d. Testimony from witness Peter Spero stating that he has known the defendant Nicholas Mauro for an extensive period of time and that he has been heavily involved in Mauro's book making operations in the Western District of New York.

e. Spero will also testify that during the course of that relationship, Mauro and his associates had been in regular contact with Ben Rogers to obtain betting lines and to "lay off" bets.

f. Testimony of witness Dana Iser who will testify that he was a writer in the Mauro organization and that from time to time during 1988-1989 he would take calls from Ben Rogers regarding the betting activities of Nicholas Mauro.

Information from a review of 182B-869 listed Rogers as being described as a white male . . . DOB: October 30, 1927; POB: Harlan Kentucky; Height: six feet; weight: 200 pounds; hair: black; eyes: gray . . . and living at . . . Louisville Kentucky. . . . Prior arrests include 1966 by FBI when he pled guilty to one count of conspiracy and paid a $ 5,000 fine. On September 10, 1975, Rogers was arrested by FBI and pled guilty to one count illegal gambling business. Rogers paid a $ 10,000 fine for that violation. Source information indicated that throughout the gambling community, this fine was made light of when Rogers was sentenced on June 2, 1976, before U.S. District Court Judge Charles M. Allen, Western District of Kentucky, at Louisville, Kentucky. No incarceration period was listed. In light of the fact that gambling is illegal in the Commonwealth of Kentucky, convictions routinely have brought fines with no time to serve. Rogers was charged on November 21, 1984, with conspiracy to conduct illegal gambling and using a telephone to facilitate unlawful activity. Charges originated out of Louisiana (No 182B-929).

Inquiries through two credit bureaus give conflicting addresses for Rogers. The [Louisville, Kentucky] address is still on file locally. However, a second agency indicated Rogers renewed his driver's license in Nevada . . . as of March, 1988. . . .

Louisville will coordinate with Buffalo to verify Rogers' involvement in instant matter via FISUR support by OCDETF members.

. . . .

. . . Investigation continues at Louisville.

Naum testified regarding the affidavits he prepared on December 6, 1989 (see Exh. F) and January 26, 1990 (see Exh. G) in support of wiretap applications, and the affidavit he prepared on February 3, 1990 in support of a search warrant application (Exh. H). Naum testified that Rogers was overheard during conversations intercepted pursuant to the January 1990 wiretap, which included new telephone numbers, based on information obtained during the December 1989 wiretap. Information regarding Ben Rogers, a/k/a "Homer", is contained at paragraphs 29 and 91-93 of Naum's December 6, 1989 affidavit. The affidavit contains no allusion to Rogers' immunized testimony. In fact, the basis for Naum's knowledge about Rogers' relationship with Nicholas Mauro appears to have been a 1983 New York State Police wiretap of Mauro's telephones, during which Rogers and Mauro were overheard exchanging line information. These telephone calls were placed from Mauro in Niagara Falls, New York to Rogers in Louisville, Kentucky.
*fn4"
Similarly, Naum's February 1990 search warrant affidavit makes no reference to Rogers' immunized testimony.

. . . and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

This argument presupposes that the statute's prohibition will prove impossible to enforce. The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom. . . .

. . .

. . . This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an "investigatory lead," and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.

Id. at 459-460, 92 S. Ct. at 1664-65.

The Kastigar Court also stated that a witness who has been afforded immunity under § 6002 is not dependent on the good faith of the government for the preservation of his rights. The Court held:

One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.

Id. at 461-62, 92 S. Ct. at 1665.

The government's "heavy burden" is not satisfied by the government's mere assertion that the immunized testimony was not used. United States v. Tantalo, 680 F.2d 903, 908 (2d Cir. 1982); United States v. Nemes, 555 F.2d 51 (2d Cir. 1977). However, the government "may meet its burden with affidavits that are nonconclusory in form and do not simply ask the court to rely on the government's good faith." United States v. Harloff, 807 F. Supp. 270, 282 (W.D.N.Y. 1992). Likewise, the government may show a legitimate independent source by proving that it knew the information disclosed during the immunized testimony before that testimony was provided. See United States v. Bianco, 534 F.2d 501 (2d Cir.), cert. denied, 429 U.S. 822, 97 S. Ct. 73, 50 L. Ed. 2d 84 (1976). This presents an issue of fact for the Court's determination. United States v. Rivieccio, 919 F.2d 812, 814 (2d Cir. 1990), cert. denied, 115 L. Ed. 2d 1020, U.S., 111 S. Ct. 2852 (1991).

The Second Circuit has emphasized that the primary focus of Kastigar's prohibition on direct or indirect use of immunized testimony is on evidentiary use. In United States v. Mariani, 851 F.2d 595 (2d Cir. 1988), cert. denied, 490 U.S. 1011, 109 S. Ct. 1654, 104 L. Ed. 2d 168 (1989), the court explicitly declined to follow United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973) and similar cases holding that § 6002 forecloses the prosecution of an immunized witness where his immunized testimony might have tangentially influenced the prosecutor's thought processes in preparing the indictment and preparing for trial. Id. at 599 (section 6002 "clearly prohibits evidentiary direct or indirect use of the witness's testimony.") (emphasis added). See also United States v. Schwimmer, 924 F.2d 443 (2d Cir. 1991); Rivieccio, 919 F.2d at 815 ("To the extent the Government's thought process or questioning of witnesses may have been influenced by Appellant's immunized testimony, we hold that any such use was merely tangential and was therefore not a prohibited use."). In Mariani, the court wrote, "We cannot see how the government prosecutor's knowledge of Mariani's immunized testimony could be considered impermissible use of that testimony." Mariani, 851 F.2d at 600.

The government argues that § 6002 has no proactive application, and that the statutory grant of immunity can only relate to past criminal activities about which defendant testified. The Second Circuit has viewed the statute somewhat more broadly, particularly in cases such as this, where there is an indication of ongoing criminal activity. In United States v. Gallo, 859 F.2d 1078 (2d Cir. 1988), cert. denied, 490 U.S. 1083, 109 S. Ct. 1539, 103 L. Ed. 2d 843 (1989), defendant Miron was indicted together with fifteen codefendants, and was convicted of participating in the Gambino Crime Family through a pattern of racketeering activity, consisting of Taft-Hartley violations and obstruction of justice. He was also convicted on substantive Taft-Hartley and obstruction of justice charges. Prior to trial, Miron moved to dismiss the indictment against him because he had previously provided immunized testimony under § 6002.

Miron had given testimony before a federal grand jury in connection with a criminal investigation of Teamsters official John Cody. Miron testified regarding Cody's contacts with the Gambino Crime Family, including Paul Castellano. Cody was indicted and convicted. Subsequently, however, Miron was indicted in the Gallo case, and Castellano and two other labor union officials were named as unindicted coconspirators. It appears that the Assistant United States Attorney who obtained Miron's grand jury testimony provided Miron's testimony to Cody's probation officer for preparation of Cody's presentence report. The report indicated that Miron's testimony regarding the Miron-Castellano-Cody relationship "corroborated" information provided by FBI informants as to the Cody-Castellano relationship. At approximately the time of Cody's sentencing, the government initiated a series of applications for electronic bugging of the home of Paul Castellano. In one of these applications, the FBI agent indicated that the Assistant United States Attorney had told him about Miron's grand jury testimony, and that the testimony indicated that Castellano was involved in illegal activity.

Although the Second Circuit ultimately affirmed the district court's holding in Gallo, it in fact determined that the use of Miron's immunized testimony violated § 6002 and the Fifth Amendment. Judge Winter wrote for the court;

The government argues, however, that because the crimes committed by Miron occurred after he gave his immunized testimony, the use of that testimony in securing the indictment and his conviction violates neither the statute nor the fifth amendment. I do not discern in relevant Supreme Court decisions such a broad principle. . . .

The grand jury here was gathering information about ongoing criminal activity involving labor racketeering, and the information it gathered was available to federal law enforcement officials. In a real sense, therefore, testimony by Miron regarding his business, which was closely related to the construction industry and involved union contracts, his relationship with Cody, who was the subject of the investigation, and his relationship with Castellano, who was a widely-reputed organized crime boss, disclosed "links in a chain of evidence," (citation omitted) that were potentially incriminating both as to past and future crimes arising out of the activity being investigated. The very use of Miron's immunized testimony in the application for an extension and expansion of the surveillance authorization demonstrates the testimony's inculpatory nature. . . . Application of an inflexible chronological test in the present circumstances would open avenues of evasion, by allowing a grand jury investigating ongoing criminal activity to immunize a person so as to obtain testimony that would thereafter support probable cause for electronic surveillance of that person. Moreover, because labor racketeering is, like gambling, generally an ongoing activity, a substantial risk of incrimination attends the questioning of persons in situations similar to Miron's. I thus conclude that the use of Miron's immunized testimony violated the use-immunity statute and the fifth amendment.

859 F.2d at 1082-83 (emphasis added). Nonetheless, the court upheld Miron's conviction, finding that the violation of Miron's rights had no effect on the course of events leading to his indictment and conviction. Therefore, the court determined that the error was harmless.

The principles discussed by the Second Circuit in Gallo are germane to the present case. Here, the Superseding Indictment suggests that defendant Rogers engaged in ongoing criminal activity. The government's investigation uncovered a prior association with Nicholas Mauro's bookmaking operations. Indeed, Count I of the original indictment returned in this case alleged that Rogers joined in a conspiracy to engage in an illegal gambling business that extended back to April 16, 1981: prior to the dates of Rogers' compelled testimony. Furthermore, the government has indicated:

(Government's Consolidated Responses to the Defendants' Omnibus Pre-Trial Motions, October 1, 1992, p.3). It appears that, according to the government's own statements, the government intends to use information it obtained prior to the dates of Rogers' immunized testimony. Therefore, this Court has been especially sensitive to any possibility that Rogers' testimony was exploited in a way that violated his privilege against self-incrimination.

Moreover, Bruce's prosecution of this case has caused this Court to examine the government's anticipated evidence with particular scrutiny. Defendant Rogers strenuously argues that Bruce should not be allowed to represent the government in the present case, due to his exposure to Rogers' immunized testimony. Although this Court does not find that Bruce should be barred from continuing to prosecute this case, this factor has had a significant impact on this Court's consideration of defendant's Kastigar motion. In future cases, the government may wish to avoid the appearance of impropriety by constructing a "Chinese Wall" around prosecutors who have been exposed to immunized testimony. The Second Circuit recommended this practice in Schwimmer, in which the court was presented with the possibility of a retrial of a case after the defendant was convicted and immediately subpoenaed to testify before a grand jury investigating activities relating to the offense of conviction. The court held that the defendant could be required to provide the immunized testimony prior to his appeal. Nonetheless, the court wrote:

Without deciding the issue, it would appear prudent for the government in the event of a retrial to establish a so-called "Chinese Wall" between its prosecutors exposed to the present grand jury testimony--the ordering of which is the subject of this appeal--and those prosecutors who may be assigned to retry defendant. See United States v. Semkiw, 712 F.2d 891, 895 (3d Cir. 1983) (adopting such approach); U.S. Dep't of Justice, United States Attorneys' Manual § 1-11.400, at 21 (1987) (to demonstrate that no non-evidentiary use has been made of the compelled testimony, prosecution would be handled by an attorney unfamiliar with its substance.

Id. at 26.

The relevant portion of the United States Attorneys' Manual is now § 9-23.400, which provides that a government attorney must seek approval from an Assistant Attorney General before initiating prosecution against any individual who has provided immunized testimony. In seeking such approval, the attorney must indicate "how he/she will show affirmatively that no other 'non-evidentiary' use has been or will be made of the compelled testimony in connection with the proposed prosecution (for example, by having the prosecution handled by an attorney unfamiliar with the substance of the compelled testimony)." Although the Manual is only an "internal guideline" intended to guide the exercise of prosecutorial discretion within the Department of Justice, see United States v. Catino, 735 F.2d 718, 725 (2d Cir. 1984) (discussing a Department of Justice Petite policy); United States v. Ng, 699 F.2d 63, 71 (2d Cir. 1983) (same), the government is encouraged to consider this policy in the future.

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